FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 4, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-2084
v. (D.C. No. 1:04-CR-01554-LH-2)
(District of New Mexico)
RUDY ARCHULETA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.
On November 22, 2005, Rudy Archuleta pled guilty to one count of
possession with intent to distribute five grams or more of a mixture and substance
containing a detectable amount of cocaine base, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B) (“Count One”); and one count of carrying a firearm
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with under the terms and conditions of 10th Cir. R. 32.1 and 10th Cir.
R. 32.1.
during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §
924(c) (“Count Two”). Mr. Archuleta received a sentence of sixty-three months
for Count One, and sixty months for Count Two, to be served consecutively.
On July 10, 2008, Mr. Archuleta filed a motion to reduce his sentence
pursuant to U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007), made retroactive by
U.S.S.G. App. C, Amend. 713 (Mar. 3, 2008), contending that Amendment 706
entitled him to a two-level reduction in his base offense level. The district court
granted the motion and reduced the sentence for Count One to sixty-months, the
statutorily mandated minimum for the offense of conviction.
Mr. Archuleta then filed a second motion for modification of sentence
under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 5K2.0(a)(2)(A) & (B). In his
motion, Mr. Archuleta conceded that the statutorily mandated sixty-month
sentence for Count One was not impacted by Amendment 706, see rec. vol. I, at
38, but nevertheless asserted an entitlement to a downward departure on the basis
that his failing health was not adequately addressed in the original sentencing
proceedings. Id. at 39. The district court dismissed the motion for lack of
jurisdiction, reasoning that the sentence modification statutes do not grant
authority to reduce Mr. Archuleta’s sentence further. Id. at 48.
This appeal followed. Concluding there were no nonfrivolous grounds to
appeal, Mr. Archuleta’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Under Anders, “counsel [may] request permission to withdraw
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[from an appeal] where counsel conscientiously examines a case and determines
that any appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d
928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires
counsel to:
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744) (internal citations omitted). We review for
abuse of discretion the district court’s decision to deny a reduction in sentence
under 18 U.S.C. § 3582(c)(2). See United States v. Sharkey, 543 F.3d 1236, 1238
(10th Cir. 2008). For the reasons set out below, we grant counsel’s motion to
withdraw and dismiss the appeal.
Mr. Archuleta contends on appeal that his modified sixty-month sentence is
unreasonable because the district court failed to adequately consider various
sentencing factors, in particular his failing health, in the original sentencing
proceedings. See Aplt. Br. at 3. It is well established, however, that “[a] district
court is authorized to modify a Defendant’s sentence only in specified instances
where Congress has expressly granted the court jurisdiction to do so.” United
States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (citations omitted).
“Section 3582(c) provides that a court may not modify a term of imprisonment
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once it has been imposed except in three limited circumstances.” United States v.
Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997) (listing reasons) (emphasis in
original; citations and internal quotation marks omitted). In particular, medical
condition is not one of the reasons, absent a motion by the Director of the Bureau
of Prisons. Id. at 541. Because none of these circumstances is present here, the
district court correctly dismissed Mr. Archuleta’s request for modification of his
sentence for lack of jurisdiction.
Our review of the record persuades us that Mr. Archuleta has no
meritorious grounds for appeal. We therefore GRANT counsel’s motion to
withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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